Opinion
WWMCV176011111S
04-24-2018
Lynne J. DENNING v. TOWN OF PLAINFIELD, et al.
UNPUBLISHED OPINION
File Date: April 25, 2018
OPINION
Cole-Chu, J.
On May 18, 2017, the plaintiff, Lynne J. Denning, filed a nine-count revised complaint (complaint) against the defendants, the town of Plainfield (town); Karen J. Stone, in her capacity as Animal Control Officer for the town; and Paul E. Sweet, in his capacity as First Selectman for the town. The plaintiff asserts claims for negligence, public nuisance, and recklessness. On July 21, 2017, the defendants moved to strike counts one, two, three, four, five, seven, and eight of the plaintiff’s complaint on the following grounds: (1) the plaintiff failed to allege any facts abrogating governmental immunity, and, thus, counts one, two, four, five, and eight are barred; (2) the plaintiff failed to allege legally sufficient claims for public nuisance (count three), (3) the plaintiff failed to allege legally sufficient claims for recklessness (count seven). The plaintiff filed an opposing brief on September 15, 2017. On October 30, 2017, the court heard oral argument and the motion was submitted. The court apologizes to the parties and counsel for the delay in issuing this decision.
The ninth count, mislabeled " Twelfth Count," is referred to herein as count nine. Count six and nine are against the defendants Allied Community Resources, Inc., and Day Kimball Homemakers, Inc., respectively. The present motion does not concern these counts or defendants.
Counts one, three, and seven are against the town and Stone; counts two, five, and eight are only against the town; count four is against the town and Sweet. The town, Stone, and Sweet are here referred to collectively as " the defendants."
FACTS
For present [motion to strike] purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency. See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012); see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true; complaint is construed broadly and realistically). All well-pleaded facts and all necessarily implied facts are taken as admitted. Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). A motion to strike does not admit legal conclusions or the correctness of opinions. Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Viewing the allegations of the plaintiffs’ complaint in this light, the essential facts of this case are as follows.
On December 3, 2014, the plaintiff was at 379 Putnam Road, Plainfield, Connecticut (residence), providing home health care aid to a client. As she was sitting in the living room, one of multiple dogs in the residence, an approximately 130-pound Rottweiler known as " Phoenix" (dog), attacked the plaintiff and knocked her over. Other dogs then attacked the plaintiff, dragged her across the living room by her face, shoulder, and legs, and ripped flesh from her face, shoulder, arms and legs until the dogs were restrained by a person in the residence. As a result of the attack, the plaintiff sustained devastating and life-threatening injuries.
DISCUSSION
A motion to strike contests the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the court takes " the facts to be those alleged in the [complaint] ... and construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747. A motion to strike a complaint is confined to the facts alleged in the complaint. Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). A complaint which alleges conclusions of law that are unsupported by the facts alleged may be stricken. Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
GOVERNMENTAL IMMUNITY
The town and Stone move to strike counts one, two, four, five, and eight, alleging negligence by them, on the ground the claims in these five counts are barred by governmental immunity. Specifically, the defendants argue that General Statutes § § 22-332, 22-349, and 22-367, which form the basis of these counts, concern discretionary acts, not ministerial acts. The plaintiff argues that these statutes prescribe ministerial duties of the town and Stone which are not subject to governmental immunity.
Under the common law, a municipality was generally immune from liability for its tortious acts. Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). However, such governmental immunity may be abrogated by statute; id. ; and General Statutes § 52-557n(a)(1) provides in relevant part that " [e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ..."
" [Section] 52-57n(a)(2)(B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 312, 101 A.3d 249 (2014). " The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Coe v. Board of Education, 301 Conn. 112, 118, 19 A.3d 640 (2011). " If the acts or omissions complained of are not imposed in the form of a general legal duty, they must, in order to be characterized as ministerial, be required by [a] ... charter provision, ordinance, regulation, rule, policy, or any other directive ... that prescribe[s] the manner in which [they are to be performed]." (Internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.App. 262, 271, 41 A.3d 1147 (2012).
§ 52-557n(a)(2)(B) provides, in relevant part, " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
" Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ... there are cases where it is apparent from the complaint ... [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ... § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ..." (Internal quotation marks omitted.) Thivierge v. Witham, 150 Conn.App. 769, 775-76, 93 A.3d 608 (2014).
Governmental Immunity: Ministerial vs. Discretionary
As noted previously, § § 22-332, 22-349, and 22-367 form the basis of counts one, two, four, five, and eight of the plaintiff’s complaint. Mindful that the interpretation of pleadings, and therefore the claimed statutory basis of pleadings, is a question of law for the court; Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005); the court must examine each statute regarding whether the defendants’ alleged conduct was discretionary or ministerial in nature.
Section 22-332 provides in relevant part: " (a) The Chief Animal Control Officer, any animal control officer or any municipal animal control officer shall be responsible for the enforcement of this chapter and shall make diligent search and inquiry for any violation of any of its provisions. Any such officer may take into custody (1) any dog found roaming in violation of the provisions of Section 22-364, (2) any dog not having a tag or plate on a collar about its neck or on a harness on its body as provided by law or which is not confined or controlled in accordance with the provisions of any order or regulation relating to rabies issued by the commissioner in accordance with the provisions of this chapter, or (3) any dog or other domestic animal found injured on any highway, neglected, abandoned or cruelly treated." (Emphasis added.) The statute provides that an officer " may" take a dog into custody, leaving the officer’s response within his or her discretion. See Malloy v. Colchester, Superior Court, judicial district of New London, Docket No. CV- 00-0120896-S (May 8, 2003, McLachlan, J.) (holding, inter alia, that § 22-332 is discretionary because it grants animal control officer discretion to ultimately determine whether to take the dog into custody), aff’d, 85 Conn.App. 627, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004); see also Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000) (" The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion" ); Thivierge v. Witham, supra, 150 Conn.App. 777 (same). Accordingly, the court concludes that actions of an animal control officer- Stone in this case- pursuant to § 22-332 are discretionary in nature.
Next, § 22-349 provides in relevant part: " Such municipal animal control officer or regional animal control officer shall ... make diligent search for any unlicensed dog required to be licensed by section 22-338. The commissioner shall adopt regulations ... establishing procedures for such search." (Emphasis added.) This statute clearly does not require that an officer search for unlicensed dogs in any prescribed manner, evidenced by the language tasking the commissioner with the responsibility of " establishing procedures" for the search of unlicensed dogs. The statute neither spells out, nor directs, how the search procedure for unlicensed dogs should take place. See generally Thivierge v. Witham, supra, 150 Conn.App. 776-77 (" [a]lthough General Statutes § 22-331 provides for the appointment of a municipal animal control officer to administer and enforce the laws relating to dogs, it does not provide any directive on how those are to be enforced" [internal quotation marks omitted; footnote omitted] ); Violano v. Fernandez, 280 Conn. 310, 322-23, 907 A.2d 1188 (2006) (noting that " reasonable, proper, or adequate inspection involves the exercise of judgment" [internal quotation marks omitted] ). This court concludes that Stone’s alleged actions as animal control officer pursuant to § 22-349 are discretionary in nature.
Finally, § 22-367 provides in relevant part: " [T]he Chief Animal Control Officer, the animal control officers, and all prosecuting officers shall diligently inquire after, and prosecute for, any violation of any provision of this chapter, and the commissioner shall, upon the complaint of any person that such officer is dilatory or negligent in the performance of the officer’s duties concerning the enforcement of any such provision, take such action as the officer deems necessary to secure such enforcement." Despite requiring that an officer " diligently inquire after" violations of the statute, § 22-367, like § 22-349, does not prescribe the manner in which such diligent inquiry should occur. See generally Thivierge v. Witham, supra, 150 Conn.App. 777 (" [General Statutes] § 22-358 itself does not require an officer to ensure that a restraint order be enforced in any prescribed manner or at all" ). " [T]he word ‘shall’ does not necessarily give rise to a ministerial duty ... The mere fact that a statute uses the word ‘shall’ in prescribing the function of a government entity or officer should not be assumed to render the function necessarily obligatory in the sense of removing the discretionary nature of the function." (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 169, 95 A.3d 480 (2014) ( " shall," in written police procedure, did not give rise to a ministerial duty when policy language clearly relied upon discretion of officer). The breadth of § 22-367- directing investigation of any violation of any statute within chapter 435 of the General Statutes- compels the conclusion that § 22-367 directs and sets the scope of officers’ authority, i.e., of their discretion, not that it requires ministerial execution of particular duties, none of which appear in the statute.
Moreover, with the exception of count four, the plaintiff has failed to identify any town ordinance, policy, or other claimed source of a duty on the town or Stone to act in a prescribed manner. See Violano v. Fernandez, supra, 280 Conn. 323 (holding that acts or omissions complained of were ministerial in nature because they did not allege that defendant was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to act in any prescribed manner). In the absence of any such authority compelling the defendants to act in a prescribed manner; see Thivierge v. Witham, supra, 150 Conn.App. 777; the defendants’ conduct cannot be regarded as ministerial in nature.
In count four, the plaintiff alleges violation of § 6-2(f) of the Plainfield Town Charter (Plainfield Charter), which states, " [t]he First Selectman shall direct and supervise the administration of all departments and offices of the town, except as otherwise provided by this Charter or by law." That mandate to the First Selectman does not prescribe the manner in which such direction and supervision should be done. See Strycharz v. Cady, 323 Conn. 548, 567-69, 148 A.3d 1011 (2016) (discussing that duty to supervise lower level employees involves exercising discretion by supervisor to oversee and ensure that lower level tasks and responsibilities are accomplished); see generally Thivierge v. Witham, supra, 778 (" [i]n the absence of any authority prescribing the specific manner in which a municipality must appoint and supervise an animal control officer, the city’s conduct in doing so was not ministerial" ). How Sweet, the town’s First Selectman, discharges his mandate under § 6-2(f) of the Plainfield Charter is discretionary in nature.
On the basis of the foregoing analysis, the acts and omissions of Stone and Sweet alleged in counts one, two, four, five, and eight were discretionary in nature. Accordingly, pursuant to § 52-557n(a)(2)(B), governmental immunity shields the defendant from liability as a matter of law unless an exception is found to apply.
Governmental Immunity: Common-Law Exception
Of the three common-law exceptions to municipal immunity of the town, Stone and Sweet, only one- the identifiable person-imminent harm exception- is claimed to apply in this case. This exception " allows for liability when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... This identifiable person-imminent harm exception has three requirements: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ... All three must be proven in order for the exception to apply." (Internal quotation marks omitted.) Haynes v. Middletown, supra, 314 Conn. 312-13.
The other two exceptions to immunity of a municipal employee from liability for the performance of discretionary acts are where a statute specifically provides for a cause of action against a municipal official for failure to enforce certain laws, such as General Statutes § 7-108 (liability for damage caused by mob), and where the alleged act involves malice, wantonness, or intent to injure. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
In Haynes v. Middletown, supra, 314 Conn. 321, our Supreme Court reviewed its prior cases on imminent harm, Evon v. Andrews, supra, 211 Conn. 501,
" An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Like-wise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 436, 165 A.3d 148 (2017). The Supreme Court has held that generally " a party is an identifiable person when he or she is compelled to be somewhere ... Accordingly, the only class of foreseeable victims that [the courts] have recognized ... is that of schoolchildren attending public schools during school hours because ... they [were] legally required to attend school rather than being there voluntarily." Id. " The rule has been narrowly applied outside of the public school context ... and the few cases in which a specific plaintiff has been held to be an identifiable victim are largely limited to their facts." (Citation omitted.) Texidor v. Thibedeau, 163 Conn.App. 847, 862, 137 A.3d 765, cert. denied, 321 Conn. 918, 136 A.3d 1276 (2016). " [T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." Haynes v. Middletown, supra, 314 Conn. 322-23 and n.16 (overruling imminent harm analyses set out in Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 [1998] and Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 [1994] ). This analysis focuses not on " the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created." (Emphasis in original.) Haynes v. Middletown, supra, 322.
In the present case, the plaintiff does not allege that she was compelled to be at the residence where she suffered the alleged attack by the dogs. Unlike schoolchildren attending public schools during school hours; see St. Pierre v. Plainfield, supra, 326 Conn. 436; the plaintiff voluntarily provided home health care at the residence. Our Supreme Court has made clear that " this choice precludes the court from holding that the plaintiff is an identifiable person or a member of an identifiable class of persons." Id., 438. In addition, any number of potential victims could have come into contact with the dogs. See Thivierge v. Witham, supra, 150 Conn.App. 780 (holding, in a similar dog-bite context, that any number of potential victims could have come into contact with the violent dog and thus the victim was not an identifiable person). " As the identifiable person, imminent harm exceptions requires conjunctive proof of both, our determination that the plaintiff does not qualify as an identifiable person ends our analysis, and we need not consider whether an imminent harm existed on these facts." St. Pierre v. Plainfield, supra, 438. Accordingly, the imminent person-imminent harm exception to governmental immunity does not apply to counts one, two, four, five, and eight.
In sum, the court holds that § § 22-332, 22-349, and 22-367, as well as § 6-2(f) of the Plainfield Charter, required that Stone and Sweet, for the town, exercise their judgment and discretion in various ways. Liability for their having done so, as appears from the facts alleged, is subject to governmental immunity and the imminent person-imminent harm exception does not apply. Accordingly, the defendants’ motion to strike counts one, two, four, five, and eight of the plaintiff’s complaint must be granted.
PUBLIC NUISANCE
In count three, the plaintiff alleges public nuisance against the town and Stone. The defendants move to strike this count on the ground that it fails to set forth a legally sufficient claim for public nuisance. In particular, the defendants contend that the plaintiff failed to allege a " positive act," as required for a claim of public nuisance. In opposition, the plaintiff cites to Keeney v. Old Saybrook, 237 Conn. 135, 166, 676 A.2d 795 (1996), for the proposition that " a municipality may be liable for public nuisance that it intentionally creates through its prolonged and deliberate failure to act or abate that nuisance."
Our Supreme Court has made clear that a plaintiff must prove four elements in order to sustain a nuisance cause of action: " (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages." (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). " [L]iability can be imposed on a municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality ... [F]ailure to remedy a condition not of the municipality’s own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, supra, 237 Conn. 164.
Although the plaintiff is correct that a " municipality may be liable for public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance" ; id., 166; the alleged failures to act by the town and Stone do not rise to the level of intentional misconduct alleged in Keeney . Keeney did not alter the " positive act" requirement to allege a public nuisance claim against a municipal defendant. See id., 164 (municipality can only be liable if condition is a nuisance created by some positive act of the municipality); see also Monaco v. Old Saybrook, Superior Court, Judicial District of Middlesex, Docket. No. CV-08-5004879-S (November 13, 2008) (46 Conn.L.Rptr. 676, 677) (" [s]ubsequent cases interpreting Keeney require that the plaintiff allege either a positive act or an intentional disregard of known hazards" ). Keeney was decided " in light of the strong public policy manifested by the environmental protection statutes" and did not decide " what the law of municipal liability may be in other contexts ..." Keeney v. Old Saybrook, supra, 166. In Keeney, the defendant had violated four orders to abate water pollution. Id., 141. The defendants in the present case were not required to enforce regulations in any particular manner. Nor, as far as is alleged, had any other governmental authority ordered the defendants to take any specific actions regarding any of the dogs which attacked the plaintiff. Thus, regardless of the holding in Keeney, the plaintiffs are required to allege that the defendants, by some positive act, created the condition constituting the alleged nuisance. See Picco v. Voluntown, supra, 295 Conn. 146.
In this case, the plaintiff has alleged no fact- only legal conclusions- showing that the acts of the defendants, or any of them, created the nuisance claimed in count three. See Keeney v. Old Saybrook, supra, 237 Conn. 164 (alleged failure to remedy a condition which town did not create does not meet requirement of alleging positive act of creating nuisance). The plaintiff’s allegation that Stone created an inherently dangerous nuisance by allowing a resident of the town to harbor a dog in claimed violation of § § 22-363 and 22-367 is unavailing. See Pl.’s Compl., p. 6. Unlike Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975), where the court held that there was a positive act by the municipality after a warden released a dog prior to the expiration of a period of quarantine, the plaintiff’s factual allegations against Stone concern no particular action creating the condition of nuisance in the residence. Rather, the plaintiff alleges that Stone failed to enforce particular statutes or to use her powers under them. Stone’s alleged failure to act is taken as true for present purposes. See New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747. However, apart from the law that legal conclusions are not deemed admitted, Stone’s failure to use her powers under § § 22-332, 22-349, and 22-367 does not constitute a positive act for purposes of imposing liability on the municipality. See Picco v. Voluntown, supra, 195 Conn. 152 (failure of municipality to eliminate dangerous tree condition was not a positive act); Tebbets v. Oliver Group, Superior Court, Judicial District of New London, Docket No. CV-09-5013052-S (July 14, 2010, Cosgrove, J.) (failure of municipality to enforce zoning regulations was not a positive act). Accordingly, count three fails to state a claim for nuisance.
A motion to strike does not admit legal conclusions. See
RECKLESSNESS
Count seven, the final count challenged by the present motion, alleges recklessness against Stone. Stone moves to strike count seven for failure to allege facts constituting a legally sufficient claim for recklessness.
The title of the seventh count is " [a]s to Karen J. Stone; Town of Plainfield- Recklessness (C.G.S. § 7-465)." Mention of the town in the title does not mean count seven is against the town. The interpretation of pleadings is a question of law.
" Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent ... More recently, we have described recklessness as a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 382, 119 A.3d 462 (2015).
The plaintiff has failed to allege a claim of recklessness against Stone because count seven is devoid of facts indicating that she had the knowledge of serious danger to anyone at the residence, including the plaintiff in particular, let alone that Stone made the conscious choice to subject the plaintiff to that danger. The only factual allegations in count seven of what Stone knew are taken as true, but what is alleged is only that Stone had " knowledge of prior incidences with said Rottweilers," " knowledge of prior incidences," and " prior knowledge of Rottweilers’ dangerous propensities." The rest of the allegations in count seven are either legal conclusions or unrelated to Stone’s consciousness of risk to the plaintiff or to anyone else. See Martin v. Brady, 261 Conn. 372, 380, 802 A.2d 814 (2002) (complaint must allege or necessarily imply that defendant’s conduct showed reckless state of mind or was so egregious as necessarily to be considered reckless).
As previously noted, recklessness requires " more than a failure to exercise reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 382; see also Williams v. Housing Authority of Bridgeport, 327 Conn. 338, 380, 174 A.3d 137 (2017) (" [t]he key distinctions between negligence and reckless ... are the extreme departure from ordinary care and the conscious choice of this course of action with knowledge of the serious risk of harm involved" ). Recklessness inherently exists, if at all, when one’s choice of a course of action is immediately preceded by, and despite, one’s consciousness either that the course of action actually presents a serious danger to another person or that one is disregarding facts which would disclose such danger to a reasonable person. Apart from count seven identifying only one dog as a Rottweiler and only that Stone " knew or should have known that the subject dogs had committed numerous vicious attacks; " (emphasis added) Pl.’s Compl., p. 2, ¶ 7; Stone could have had " knowledge of prior incidences with said Rottweilers" (count seven, ¶ 9(d) and 9(f) ) yet have no awareness that any action or inaction of hers presented a danger to the plaintiff. As alleged, Stone could have been off duty, even on vacation, at the time of the subject dog attack. To hold count seven sufficient as a cause of action for recklessness would be to hold that an animal control officer is a guarantor of injuries and losses caused by any dog within the officer’s jurisdiction known by the officer to have attacked a person. Thus, an officer in such circumstances could be liable for punitive damages. The law of recklessness and governmental immunity, and our rules of pleading, prohibit that conclusion.
Finally, the plaintiff alleges violations of § § 52-557n(b)(7) and (8) as bases of her recklessness claim. In particular, the plaintiff alleges that Stone violated § 52-557n(b)(7) by " failing or refusing to remove said dogs from the residence despite her knowledge of prior incidences ..." Pl.’s Compl., p. 17. This allegation is insufficient to support a recklessness claim because, as discussed previously, recklessness requires " more than a failure to exercise reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 382.
The complaint alleges violations of § § 52-557n(7) and (8). There being no such subsections of § 52-557n, the court infers that § § 52-557n(b)(7) and (8) were intended. See
Section 52-557n(b)(7) provides in relevant part that " a political subdivision of the state or any employee, officer, or agent acting within the scope of his employment or official duties shall not be liable for damages ... resulting from ... refusal to issue, deny, suspend, or revoke any permit, license, ... or similar authorization, when such authority is a discretionary function by law,
Section 52-557n(b)(8) provides in relevant part that " a political subdivision of the state or any employee, officer, or agent acting within the scope of his employment or official duties shall not be liable for damages ... resulting from ... failure to make an inspection or making an inadequate or negligent inspection of any property ... to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or
In count seven, the rest of the sentence after " incidences" - " thereby constituting a reckless disregard for health or safety of the [p]laintiff" - is a conclusion of law. ---------
The plaintiff further alleges that Stone violated § 52-557n(b)(8) by " failing to make an inspection of the residence despite prior knowledge of Rottweilers’ dangerous propensities." Pl.’s Compl. p. 17, ¶ 9(1). This court is skeptical that merely alleging " knowledge of ... dangerous propensities" of any breed of dog would be sufficient to support a cause of action for recklessness. Here, however, the court need only conclude, and does conclude, that Stone’s failure to inspect the residence despite knowledge of alleged dangerousness of an entire canine breed is insufficient basis for a claim of recklessness. In Williams v. Housing Authority of Bridgeport, supra, 327 Conn. 362, our Supreme Court recently made clear that " [t]here is no indication the legislature intended to adopt a lower standard for recklessness in the context of municipal inspections, one requiring that a defendant merely disregard a possible impact on public or individual health or safety." More specifically, in the context of § 52-557n(b)(8), a municipal actor can be found reckless " when it is clear that the failure to inspect may result in a catastrophic harm, albeit not a likely one." Id., 364. Count seven fails to allege facts showing that Stone knew that her failure to inspect the residence where the plaintiff was attacked could have resulted in harm, let alone catastrophic harm. For these reasons, the court concludes that count seven is legally insufficient.
For the foregoing reasons, the defendants’ motion to strike counts one, two, three, four, five, seven, and eight is granted.
Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), and Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994), and reiterated that its holding in Evon was " that a harm is imminent if it is so likely to happen that the duty to act immediately is clear and unequivocal ..." (Emphasis in original.) Accordingly, the court concluded that " Burns incorrectly held that a foreseeable harm may be deemed imminent if the condition that created the risk of harm was only temporary and the risk was significant and foreseeable. Our statement in Evon ... that a harm is not imminent if it ‘could have occurred at any future time or not at all’ was not focused on the duration of the alleged dangerous condition, but on the magnitude of the risk that the condition created. Accordingly, the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm. We therefore overrule Burns and Purzycki to the extent they adopted a different standard." (Citation omitted; emphasis in original.) Haynes v. Middletown, supra, 322-23.
Faulkner v. United Technologies Corp., supra, 240 Conn. 588.
Boone v. William W. Backus Hospital, supra . The town, not being a person, could not form a consciousness of risk or danger, let alone disregard such consciousness so as to be liable for recklessness. Furthermore, § 7-465(a) provides in relevant part that " [a]ny town ... shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person or property ... if the employee, at the time of the ... physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such ... physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty." The words wilful, wanton and reckless mean essentially the same thing. See Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). In particular, " wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct." (Internal quotation marks omitted.) State v. Alterio, 154 Conn. 23, 25-26, 220 A.2d 451 (1966). The town would not be liable under § 7-465 even if count seven stated a cause of action against Stone for recklessness and the plaintiff prevailed on that count.
O’Sullivan v. Glen, Superior Court, judicial district of Danbury, Docket No. CV-13-6012450-S (May 1, 2014) (correcting citation of statute due to typographical error because defendants were " sufficiently apprised of the nature of the statute under which the plaintiffs meant to plead" ).
unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety ..." (Emphasis added.)
unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ." (Emphasis added.)